What You Should Never Put in Your Will if You Want to Avoid Probate Nightmares

what you should never put in your will

No one enjoys thinking about their own mortality or what will happen to their belongings after they pass away. It’s a heavy topic that many of us would rather avoid. However, failing to plan appropriately can lead to unintended consequences and a world of headaches for your loved ones. That’s why having a properly drafted will is so crucial.

But just as important as having a will is understanding what should and should not go into it. There are certain things that, if included in your will, can create legal issues, cause conflicts, and even render parts of your will invalid. The last thing you want is for your final wishes to be disregarded or for a court to decide how your assets get divided.

So let’s dive in and look at what you should steer clear of when drafting your will. With some careful planning and guidance, you can ensure your legacy is preserved exactly how you intend.

Understanding Wills and the Probate Process

A will is a legally binding document that specifies how you want your property and assets to be distributed after you die. It designates beneficiaries to receive specific belongings, allocates portions of your estate, and can even name a guardian for your minor children.

However, in order for a will’s instructions to be carried out, it has to go through probate – the legal process of validating the will, identifying assets, paying off debts and taxes, and ultimately transferring ownership to the inheritors.

Probate has its drawbacks, though. It can be costly and time-consuming, and because wills eventually become public record, a lack of privacy for your family during an already difficult time. For many people, avoiding probate entirely is preferred.

Assets You Should Never Put in a Will

So, what exactly should you keep out of your will? There are a few key things:

Jointly Owned Property with Right of Survivorship

Suppose you and another person jointly own any property or assets, such as real estate, vehicles, or investment accounts. In that case, those will automatically pass to the surviving co-owner regardless of what your will says. Legal ownership arrangements like joint tenancy or tenancy by the entirety (for married couples) create this automatic transfer of ownership interest.

By including jointly-owned property in your will, your loved ones may face confusion and even legal battles if the will contradicts the rightful inheritance of the co-owner. It’s wise to omit these assets.

Retirement Accounts and Life Insurance Policies

Similarly, retirement plans like 401(k)s and IRAs, as well as life insurance policies, pass outside of your will based on the beneficiary designations you’ve previously selected. The beneficiary information you provide to the plan provider or insurance company legally supersedes anything stated in a will.

This highlights how crucial it is to periodically review and update your beneficiary designations, especially after major life events like marriage, divorce, or the birth of a child. Failing to do so can result in an ex-spouse or estranged family member inheriting assets that you had different intentions for.

Property in a Living Trust

A living trust is one of the most effective tools for avoiding probate. Retitling ownership in real estate, investments, and valuable personal possessions to the trust while you’re alive will automatically transfer those assets to the trust’s beneficiaries when you die.

Because a living trust is a separate legal entity from your individual estate, any property already owned by the trust should not be referenced or moved in your will. Doing so can violate the entire purpose and legal standing of the trust.

Practical Belongings with Sentimental Value

Family heirlooms, jewelry, collectibles, and other personal effects with more sentimental than monetary value are often better handled outside of a will. Why? Because specifically, bequeathing every little item can make your will cumbersome and increase the likelihood of conflicts after you’re gone.

A wiser approach is to communicate your wishes for these sentimental belongings to the family beforehand and gift them to the intended recipients while you’re still living if possible.

What About Disinheriting Potential Heirs?

Here’s a situation that tends to raise some eyebrows and controversy: disinheriting children or spouses by intentionally leaving them out of your will. The laws around this vary from state to state.

In North Carolina, technically, you can disinherit non-minor children from your will. However, it opens up the possibility for them to legally contest the will by claiming you lacked the required mental capacity at the time it was drafted. These messy court battles can tie up your estate for years.

When it comes to your spouse, North Carolina law provides protections to prevent them from being entirely disinherited. Even if your will doesn’t leave them anything, a surviving spouse has a legal right to claim an elective share of the “marital estate” – all property acquired by either spouse during the marriage.

So, while it’s possible to exclude certain heirs from inheritance, the likelihood of them challenging the will in court means it is pertinent to have a well-documented and airtight reason why you made that decision.

When to Update Your Will and Estate Plan

Creating an estate plan with a will is undoubtedly important, but it’s not a one-and-done type of deal. Failing to periodically review and update your estate documents can quickly make them obsolete or even incorrect.

There are a few key times when it’s critical to take a fresh look:

  • Major life events – Getting married or divorced, having a child, or dealing with a death in the family should always trigger an estate plan review to account for the new circumstances.
  • Changes in state laws – If North Carolina updates its laws around wills, trusts, taxes, or anything estate-related, your documents may need to be revised to remain in compliance.
  • Acquiring or disposing of a major asset – A will created when you were younger with fewer assets may need an overhaul if you’ve acquired things like vacation property, inheritance, or a successful business since then.
  • Every 3-5 years – Even with no major events, it’s wise to review all your documents every few years with an estate planning attorney to ensure they still line up with your current situation and wishes.

The last thing you want is for life to happen and things to change but for your outdated will to control your final outcomes. The occasional check-in and update can prevent that.

Ensure Your Plans are in Order with Johnson Legal

By now, you can clearly see there are a number of things that absolutely should not be included in a will – jointly owned assets, life insurance or retirement accounts, property already in a trust, instructions that contradict other legal arrangements, and in many cases, disinheritances that will likely be challenged.

The core reasons are twofold: avoiding legal issues and ensuring your true final wishes are carried out as seamlessly as possible. Estate planning done right should give you full control and prevent conflicts, not create more problems.

There are too many potential pitfalls and gray areas that could undermine your legacy if you don’t have experienced legal minds to ensure your bases are fully covered.

If you’re unsure whether your current will and other estate documents are truly structured in a way that will play out as you intend, don’t take any chances. Reach out to the estate planning attorneys at Johnson Legal today for a comprehensive review and to explore all the options for streamlining disbursement, reducing taxes, and ensuring your loved ones are set up for a smooth, conflict-free transition.

One consultation can bring that peace of mind that your affairs are truly in order and your family is fully prepared for life’s inevitable challenges ahead. After all, ensuring your final wishes are properly carried out is one of the greatest gifts you can leave for those you care about most.

Frequently Asked Questions

Can I disinherit my spouse in my will in North Carolina?

No, under North Carolina law, you cannot completely disinherit your spouse from your will. A surviving spouse has the legal right to claim an elective share of the “marital estate,” which includes property acquired by either spouse during the marriage, regardless of what your will states.

Should I include jointly owned property in my will in North Carolina?

No, jointly owned property with rights of survivorship should not be included in your will in North Carolina. This type of property automatically transfers to the surviving co-owner when one owner passes away, regardless of what your will specifies.

What happens if I leave outdated beneficiary designations in North Carolina?

Outdated beneficiary designations on accounts like life insurance, retirement plans, etc., will take precedence over your will in North Carolina. It’s crucial to periodically review and update beneficiary designations, especially after major life events, to ensure your assets go where you intend.

Author Bio

Shane T. Johnson is the CEO and Managing Partner of Johnson Legal, an estate planning and business law firm in Wilmington, NC. With years of experience in estate and business law, he has zealously represented clients in various legal matters, including small business formation and purchasing, estate planning, probate, domestic violence, and other legal cases.

Shane received his Juris Doctor from the University of Wyoming and is a member of the North Carolina Bar Association. He has received numerous accolades for her work, including being named among the Best Probate Lawyers in Wilmington by

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